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State v. Kendall12/6/2002
d conviction, a person shall be guilty of a class A nonperson misdemeanor and sentenced to not less than 90 days or more than 1 year of imprisonment and fined not less than $500 or more than $1,000. The person must serve at least 5 consecutive days' imprisonment but, after 48 consecutive hours' imprisonment, the balance may be served on work release.
Subsection (f) stated that upon a third or subsequent conviction, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days or more than 1 year of imprisonment and fined not less than $1,500 or more than $2,500. The person must serve at least 90 days' imprisonment and, after 48 consecutive hours' imprisonment, the balance may be served on work release.
Kendall was sentenced under K.S.A. 1999 Supp. 8-1567(f). He argues that under Apprendi, the fact that he had two prior DUI convictions must be proven to a jury beyond a reasonable doubt before that fact can be used to change the classification of his crime from a misdemeanor to a felony and increase his sentence. He contends that because such a jury finding was absent here, his Sixth and Fourteenth Amendment rights have been violated and his sentence must be vacated and the case remanded for resentencing.
Kendall's argument raises a question of law over which we have unlimited review. State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).
The United States Supreme Court in Apprendi held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added.) 530 U.S. at 490.
In State v. Ivory, 273 Kan. ___, 41 P.3d 781 (2002), we analyzed the prior conviction exception to the Apprendi rule. We held that Apprendi did not require a jury finding of the fact of a prior conviction beyond a reasonable doubt in order for the prior conviction to be included in Ivory's criminal history score under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. We also rejected the argument that Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), the source of the prior conviction exception, had been called into doubt by Apprendi. Ivory, 273 Kan. at ___, 41 P.3d at 783.
We took Ivory one step further in State v. Graham, 273 Kan. ___, 46 P.3d 1177 (2002), where Graham raised an Apprendi objection to the use of his prior drug convictions to increase the severity level of his drug crimes and his sentence under K.S.A. 2001 Supp. 65-4160(c). We compared the use of a prior conviction to increase the criminal history score to the use of a prior conviction to increase the severity level of the crime, both of which increased the overall sentence. We concluded that the net effect was the same, and the use of Graham's prior drug convictions to increase his sentence did not implicate Apprendi. 46 P.3d at 1184-85.
Kendall complains of the fact that his two prior convictions of DUI were used to change the classification of the instant DUI from a misdemeanor to a felony and increase his sentence. The use of the prior convictions here, as in Ivory and Graham, falls squarely within the prior conviction exception of Apprendi. Kendall's sentence is constitutionally sound.
Affirmed.
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